James M. Redwine

Elections

The World In Ruins

by Leave a Comment

Photo by Passer-By in Coliseum 2014

Donald Trump has declared he will make a third run for the presidency in 2024. Joe Biden claims he will seek re-election. Several Republicans, Ron DeSantis, Mike Pence, Mike Pompeo, and others are not so secretly hoping lightning strikes them, or maybe strikes Trump. Democrats Gretchen Whitmer, Kamala Harris, Cory Booker, and others are feigning fealty to Biden but may be looking wistfully at the effects of Father Time.

In other words, American politics remains unchanged from the days of Jefferson and Adams. It also has regenerated its tiresome media circus of peeking under tent flaps and salivating at the probability of political gaffs. So, buckle up or just tune out for the next two years. As for me and Peg we have been looking at the past, as the present is just too fractious. So, as the pundits and politicians squabble like infants with dirty diapers, Peg and I have been interested in viewing the ancient ruins that became ruins when the cultures of the past let their tantrums get the better of them.

A couple of years ago we visited Rome and walked around the Coliseum. One gets images of gladiators and emperors who had no thought their pretentious edifice would be a mere pile of rubble one day. Then just last week we visited another ancient fort less than ten miles from our home in the country of Georgia. Georgia claims, according to the book Georgian Folk Traditions and Legends, to be situated at the juncture of Europe and Asia and to “[b]eing the most invaded country on earth.” For example, Russia that is Georgia’s neighbor to the north has most recently invaded Georgia in 2008 and 2014.

Photo by Peg Redwine

However, the fort we visited was built by several conquerors over thousands of years but was constructed in its present form on the orders of Roman Emperors Nero, Pompey, Julius Caesar Tiberius and Hadrian during the era 65 BC to the reign of Constantine, 306-337 AD. The name of the fort is Gonio-Apsaros Fortress and it is an impressive structure with ancient stone guard towers, sewage and water systems and Roman hot baths. Of course, today it is all just remnants of past glory. It is on the outskirts of the resort city of Batumi, Georgia near the shore of the Black Sea and about 3 miles from the Turkish border.

Photo by Peg Redwine

Gonio reminded us of the hauntingly impressive Native American pueblo village at Mesa Verde National Park in Colorado. This extensive cliff city was home to many Native Americans for over 700 years from 600-1300 AD. Was it simply abandoned, and if so, why? But once again we observed an impressive series of homes and a mountain stronghold that now is interesting and beautiful, but not lived in by its creators.

I suppose there are many reasons we enjoy visiting these sites of once vibrant communities gone dormant. The inventive genius of our human ancestors gives one a sense of awe and appreciation for the hard work and perseverance of people who were probably quite similar to us. If we could transport them to modern times or transport us back to their times, everybody would most likely fit right in with just a little movie make-up and a change of clothes.

The conclusion or question that keeps us awake, for example I am writing this at 3:50 a.m., is that just as the country of Georgia has been conquered numerous times (as has Jerusalem by Jews, Muslims and Christians on a revolving basis, and Rome and Greece by Vandals and Visigoths and North and South America by Spanish, English, French and Portuguese invaders) are our ruins going to provide interest to tourists of the future?

Affirmation Finally

by 1 Comment

I wrote the first of my over 900 “Gavel Gamut” columns in 1990 at the request of my friend, Jim Kohlmeyer. Jim was the Posey County, Indiana Republican Party Chairman and the owner of the New Harmony Times newspaper (now The Posey County News owned by my friend, Dave Pearce).

Jim had recently purchased the paper and was desperate for filler. He asked me, the Democrat, elected, Posey County Circuit Court Judge, to write a column about “legal topics.” Jim did not care what I wrote. Since 1990 and every week since April of 2005 I have written about topics from local heroes to national issues as I saw fit. As those of you, Gentle Readers, will note, in several of my burnt offerings my wife, Peg, had to bear the brunt of my ramblings. However, most of “Gavel Gamut” has dealt with legal topics. A major theme has been the legal system, particularly judges. The federal courts and especially the United States Supreme Court have been the recipients of my chagrin over these thirty-two years during all of which I have served and am still serving as a judge myself. Although after thirty-eight years on the Bench as a partisan-elected judge I term-limited myself and now serve in other judicial venues, such as the Country of Georgia and the National Judicial College.

As I have written numerous times, my belief is that our American democracy is in danger from non-elected, life-tenured judges. I have stated this position frequently and I hold to it firmly.

However, even though I have often expected returning brickbats from those who champion appointing judges and granting them life-tenure, almost nobody has seemed to ever take umbrage from or stated their agreement with my position until October 3, 2022

Then, voila, along came that great journalist and philosopher, Fareed Zakaria whose excellent Sunday morning CNN show, GPS The Global Public Square, is the only national news program I find to contain news. On October 3, 2022 at 8:00 p.m. Fareed aired his special, “Supreme Power, Inside the Highest Court in the Land.”

Now, Gentle Readers, I am not claiming, although I wish I could, that Dr. Zakaria has ever heard of, much less been influenced by my analysis on any subject. However, his special clearly stated one of the greatest current dangers to our democracy is life-tenured members of the U.S. Supreme Court and the totally politicized method of their selection process.

            Let me say this about that (as President John F. Kennedy used to say), AMEN, brother Fareed!

Our Two Branch Democracy

by Leave a Comment

Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

Judicial Proclivities

by Leave a Comment

Three of the United States Supreme Court’s own members Elena Kagan, Stephen Breyer and Sonia Sotomayor warn us the Court has appointed itself, instead of Congress or the EPA, the decision maker on climate policy. An outcome the three dissenters found frightening. See the dissenting opinion of Kagan as joined by Breyer and Sotomayor in West Virginia v. EPA decided June 30, 2022. What they meant was that the unelected Supreme Court installed the Judicial Branch as the policy maker for an issue, management of the environment, that should be within the Legislative Branch that is subject to democratic control, as the Court is not.

Most of us are unable to see the irony in our own actions. The same is true of the Supreme Court. The six-member majority of the Court couched its decision in terms of preserving policy making in Congress as opposed to unelected bureaucrats at the Environmental Protection Agency. But, according to the Dissent, what the Court did was simply replace the EPA with the Court as the ultimate decision maker on the broad, critical issues of environmental management.

In the similarly ironical decision Dobbs v. Jackson Women’s Health handed down 24 June 2022, the same majority set the U.S. Supreme Court up as the final policy maker on the volatile issue of abortion by deciding Roe v. Wade must be overturned and each state should decide the issue.

The same three dissenting justices warned in Dobbs that:

“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”

It is not the substance of either the EPA case or the abortion case that is our concern in today’s column. Those emotional issues of global warming and human reproduction are just too volatile and complicated to be adequately discussed in one short column. Instead, what I am struck by is the obtuseness of nine unelected, life-tenured people who arrogate themselves as final arbiters of issues so vital to the lives of 330 million Americans.  Perhaps the Supreme Court has finally brought in to focus that the justices are merely politicians on a micro scale. What I wish to discuss is how we might retain our three equal branches of government through a macro democratic process.

Does any rational observer of the Court deny the justices are simply politicians who wear black dresses and pretend to be apolitical? The justices are not to blame. If you, Gentle Reader, or I were placed by Presidential nomination and Senate confirmation on the Court, we would take our prejudices and “proclivities” with us. The problem lies not with the members of the Court but with the undemocratic way they are selected coupled with their life-time tenure. It is our Court and our Constitution and we should change both.

We have amended our Constitution 27 times. We should do so again. I suggest that the members of the U.S. Supreme Court and all federal judges be elected in a non-partisan election for one 10-year term. Once their term is honorably served, we should pay them their full salary for life and they should never serve as a judge again. The impeachment process should remain an option in case we make a mistake.

In summary, federal judges are no better or no worse than the rest of us. They are human, they have “proclivities”, they are politicians. We should drop the façade of “philosopher kings” and have our federal judges recognized as a full-fledged branch of our democracy as selected via a democratic process.

Lemonade

by Leave a Comment

Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!

The Sky’s Falling

by Leave a Comment

The national media push a highly addictive drug called paranoia. If one wants to get a reliable weather forecast or find out if a local kitten is not lost, local T.V. and regional newspapers are the best source. But if we are in need of a rush brought on by fear of catastrophe or schadenfreude, we flip the remote incessantly between CNN and FOX. CBS, NBC and ABC are available but boring. PBS can be interesting but is about as exciting as a library. No, if we want cataclysm or the satisfaction of seeing the rich and powerful fail, we must have cable. You might wonder about MSNBC but we can only take so much self-indulgent cynicism.

Gentle Reader, if you were awake, as I was at 4:00 a.m. staring at the peach-colored ceiling and wondering if I should use the restroom again or make a cup of coffee, you may have defaulted to cable T.V. That is where I saw the bobbleheads of CNN and FOX fervently seeking our advertising eyeballs by continually ratcheting up the partisan rhetoric. In between the machine gun fire of five minutes of adds were crammed five-minute exhortations camouflaged as news. Today, as usual, CNN was frothing about Donald Trump and FOX was exorcised about Cuba and communism, which FOX posited was one and the same.

CNN was giddy with the no-so-breaking story that former President Trump was unhappy about the last election, so much so that General Mark Milley, Trump’s choice for Chairman of the Joint Chiefs of Staff of the military, was concerned about a peaceful transfer of power. FOX apparently either did not know who Milley was or did not care. FOX made no mention of this “bombshell” possibility. FOX was excitedly showing Florida Governor Ron DeSantis’ campaign coozies which attacked Anthony Fauci as FOX repeatedly rolled film of protests in Cuba. CNN did not take note of Cuba nor communism as its commentators were busy extolling the virtues of giving away trillions of dollars of borrowed taxpayer money.

What came through quite clearly, even as I dozed in and out while desperately seeking facts hidden among the rushes of opinion, was that CNN and FOX both believed that Chicken Little was correct. Each of their favorite evil acorns that fall upon us is a harbinger of the sky’s collapse upon America. We must eliminate all vestiges of Trumpism, and now DeSantisism too, along with President Biden and any federal help for poor people. Of course, we can do this by buying the products hawked among the invective spewed by the incredulous news anchors. Just as grade school teachers emphasizing that we children should obey the crossing guards, cable news claims it is our best source for gospel; critical analysis is just too much trouble and no fun besides. Most importantly, run out and buy more stuff before prices rise again.

%d bloggers like this: